Are competitors luring Internet traffic to their Web site using your trademarks?

As the Internet has become ingrained into our daily lives, businesses are becoming increasingly sophisticated in manipulating how consumer and business traffic is directed to their Web sites'. Businesses, strategically embed words or phrases in the primary text of their Web site pages or in their Web site "metatags, which are visible to search engines but not to the average Internet user.

More commonly today, businesses buy keywords from search engines such as Google or Yahoo. When a business buys a keyword from a search engine and a user searches for that term, the search engine prominently lists the business's Web site as a prominent link.

So what, happens when a company purposely uses a competitor s trademarks in its Web site metatags or buys. competitor s trademark as a search engine keyword in order to lure potential customers searching for those trademarked terms? Search engines allow it, and this is fairly common practice today, although in some cases this practice can amount to trademark infringement.

The courts are not un form as to what constitutes trademark infringement in this context. Some Courts have held that using a competitor's trademarks to direct traffic to a Web site constitutes trademark infringement only if the consumer is ultimately confused as to the source or ownership of a Web site. When consumers click on an ad triggered by a keyword consisting of a competitor's trademark and then arrive at the advertiser's Web site, most consumers will realize that they are not visiting the Web site of the trademark owner. Thus, some courts have held, there is no consumer confusion, and therefore no trademark infringement.

Other courts, however, apply a doctrine known as "initial interest confusion." Whether or not the online user is confused as to the Web site's owner, the fact that she only became interested in a company's product because the company lured her to its Web site by using its competitor's trademark can constitute trademark infringement.

Businesses should consult with trademark counsel to take defensive steps to ensure that their trademarks are not being improperly used to direct Internet traffic to their competitors.

Jeremy Walker is a director in the Litigation Department of the McLane Law Firm. He can be reached at 603-628-1431 or at jeremy.walker@mclane.com. The McLane Law Firm one of New England's premier full-service law firms with offices in Manchester, Concord and Portsmouth. N.H., as well as Woburn Mass.

Jeremy T. Walker

McLane Graf Raulerson & Middleton.

Professional Association

900 Elm Street

Manchester, NH 03101

603-628-1431

jeremy.walker@mclane.com